Common discourse on social media, its impact on mainstream media and the way people communicate with one another and disseminate information has come under a lot of analysis recently, especially due to the lack of discretion.
In fact, a popular TV news anchor recently created a stir when he named the activists and lawyers in connection with the Bhima Koregaon raids 'Urban Naxals' and 'Maoists' on his prime time show.
Human rights activists had proposed that the channel should be sued for hate speech on grounds of instigating communities and threatening national security. A filmmaker had even hinted that it was the use of the term, Naxalite, for Sudha Bharadwaj (one of the five activists arrested for the Bhima Koregaon violence) by the same anchor, which led to her arrest. The bigger issue which emerges is whether statements/language by the media, which incriminate certain individuals in cases like the Bhima Koregaon raids, amount to hate speech.
What hate speech entails
Under European Union (EU) law, illegal hate speech is understood as "public incitement to violence or hatred directed to groups or individuals on the basis of certain characteristics, including race, colour, religion, descent and national or ethnic origin". While hate speech is not defined in any Indian legislation, the 267th Report of the Law Commission of India states that hate speech is "an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like".
The report in the Law Commission further clarifies that hate speech is "any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence."
Hate speech is an exception to freedom of speech. As recognised by the Law Commission Report and by the Supreme Court in Shreya Singhal versus Union of India, speech can be restricted under Article 19(2) of the Indian Constitution (provision dealing with restrictions on the right to freedom of speech) only when the speech reaches the threshold of incitement. Speech which is merely offensive or unpopular cannot be restricted.
Incidents of hate speech in India
Incidents of hate speech in the past have generally involved politicians. For instance, last month the Supreme Court sought response from the Uttar Pradesh government while hearing an appeal challenging the Allahabad HC order which dismissed a petition against Yogi Adityanath in a 2007 hate speech case; the petition was filed in the aftermath of a hate speech by Adityanath (at that time the BJP parliamentarian from Gorakhpur) which led to riots in Gorakhpur in January 2007.
When JNU student leader Umar Khalid was attacked in August 2018, former Jammu and Kashmir chief minister Omar Abdullah condemned the attack as a hate campaign using social and mainstream media. Some also attributed the attack to hate speech by the media. As a 2016 article in The Indian Express noted how Khalid was vilified on Times Now where the news anchor called him “more dangerous to this country than Maoist terrorists” and anti-national.
In 2015, civil rights activists, including Vrinda Grover and Kavita Krishnan, wrote an open letter to Arnab Goswami stating their intention to boycott Times Now - the letter stated how Goswami had subjected participants in his programme, News Hour, to hate speech and demonised human rights activists. The letter specifically condemned Goswami’s use of the terms, ‘Naxal’, ‘terrorist’ and ‘terrorist sympathiser’, noting that the use of these terms and other forms of hate speech is a “gross misuse of the media’s immense power”.
Laws dealing with hate speech in India
The provisions of the Indian Penal Code (IPC) which tackle hate speech are:
- Section 153A — Under this Section, a person who uses words (written/spoken) which promote or attempt to promote disharmony/enmity/hatred/ill-will between different groups or castes or communities on grounds including religion, language or caste is liable to be punished.
- Sections 295A and 298 — The provisions criminalise acts intended to outrage or wound the religious feelings of any individual or class.
In March 2014, in Pravasi Bhalai Sangathan versus Union of India (AIR 2014 SC 1591), the Supreme Court directed the Law Commission of India to define hate speech and recommend laws to curb the menace of hate speech in the context of speeches by politicians. In March 2017, the Law Commission submitted Report No. 267 titled, 'Hate Speech' which recommended the addition of two more provisions in the IPC. The provisions were intended to criminalise hate speech which causes incitement to violence and speech that causes fear, alarm or provocation of violence in certain cases. The recommendations of the Law Commission with respect to hate speech were incorporated with some changes in the Criminal Law (Amendment) Bill 2018. However, the Criminal Law (Amendment) Act, 2018 which was passed in August this year does not make any changes relating to hate speech to the IPC.
Interestingly, the Supreme Court in an earlier case had dismissed a public interest litigation (PIL) which sought directions to prohibit politicians from making "provocative and hate speeches" on grounds that this would violate the fundamental right to freedom of speech.
Hate speech by media
The problem of hate speech is compounded when propagated by members of the press. This is because unlike the situation where the person making the hate speech is a politician or an ordinary citizen/internet user, the media is expected to be comparatively neutral while reporting events. The media being the fourth estate has considerable influence over the society and it is easy for the line, between fact-reporting and the personal or political views of a journalist, to be blurred.
When prominent journalists start branding human rights activists as Maoists and anti-nationals, it becomes hate speech because of its potential to incite members of the public to commit acts of violence/hatred against the activists based on the views held by them. This appears to be true in case of the attacks on Umar Khalid and perhaps, even in case of the activists arrested in relation to the Bhima Koregaon incident.
The media enjoys greater freedom from defamation in order to allow fair comment by the press. However, hate speech is different from defamation as hate speech does not merely tarnish the reputation of the subject of the speech, but can lead to persecution of the person against whom the hate speech has been made. The media has a greater responsibility to not indulge in hate speech merely because of the views held by an individual. Hate speech can amount to trial by media which results in further harassment of those individuals and has a chilling effect on free speech.
The author holds a Master of Law (LL.M.) degree from University of Cambridge
Firstpost is now on WhatsApp. For the latest analysis, commentary and news updates, sign up for our WhatsApp services. Just go to Firstpost.com/Whatsapp and hit the Subscribe button.
Updated Date: Sep 14, 2018 13:28:38 IST